Ancillary Probate in Minnesota. A Minnesota Ancillary Probate Administration is subordinate (or ancillary) to, a primary probate proceeding in the decedent’s state of residence.

Minnesota Ancillary Probate - Ancillary Probate in Minnesota

Minnesota Ancillary Probate

Non-Minnesota Residents Owning Minnesota Real Property

A Minnesota Ancillary Probate Administration – where a local probate proceeding is subordinate (or ancillary) to, a primary probate proceeding in the decedent’s state of residence – may be required with respect to certain Minnesota real property which was owned at the time of death by a decedent who resided in a state other than Minnesota.

The procedure can be referred to as Ancillary Probate in Minnesota.

Minnesota Domiciliary Probate Administration

When a Minnesota resident dies with an ownership interest in Minnesota real property which was:

not titled in joint tenancy,
not subject to a Minnesota Transfer on Death Deed, and
not subject to a probate court Decree of Distribution as a Minnesota Homestead in Minnesota Summary Proceedings,

a Minnesota Personal Representative having the power to sell or distribute the decedent’s real property may only be appointed by a Minnesota Probate Court within three years from the date of the decedent’s death.

Such a representative would be a Minnesota domiciliary personal representative – because the decedent resided in Minnesota at the time of death.

Minnesota Determination of Descent Proceeding

If a Minnesota domiciliary personal representative had not been appointed by a Minnesota probate court within three years from the date of the decedent’s death, the decedent’s real property would be subject to a Minnesota Determination of Descent proceeding.

Ancillary Probate in Minnesota – Non-Minnesota Residents

When a non-Minnesota resident dies with an ownership interest in Minnesota real property, in order for a person to be empowered to sell or distribute such Minnesota real property, either:

a Minnesota Probate Court may appoint a Minnesota local personal representative – who can be the personal representative appointed in the decedent’s state of residence as the “domiciliary foreign personal representative”, or
the domiciliary foreign personal representative may be recognized by a Minnesota Probate Court as having the statutory powers of a Minnesota local personal representative – without being appointed as a Minnesota local personal representative.

Either procedure can be referred to as Ancillary Probate in Minnesota.

Minnesota Ancillary Probate Options

In Minnesota, there are two procedural tracks which may be pursued in order to empower a domiciliary foreign personal representative to sell or distribute Minnesota real property:

Minnesota Ancillary Probate – Appointment of Domiciliary Foreign Personal Representative.

The domiciliary foreign personal representative (or its nominee), can be appointed by a Minnesota probate court as the Minnesota local personal representative (hereinafter, “Minnesota Ancillary Probate – Appointment of Domiciliary Foreign Personal Representative”); or

Minnesota Ancillary Probate – Authority to Exercise the Powers of a Minnesota Local Personal Representative.

The domiciliary foreign personal representative (or its nominee), can obtain the authority to exercise all of the statutory powers of a Minnesota local personal representative without being appointed as a local personal representative (hereinafter, “Minnesota Ancillary Probate – Authority to Exercise the Powers of a Minnesota Local Personal Representative”).

Minnesota Ancillary Probate Fees

Both of the above identified Minnesota ancillary probate procedures would require payment of the same probate court filing fee – which is virtually uniform throughout the state.

Minnesota Ancillary Probate Notice Requirements

Both of the above identified Minnesota ancillary probate procedures would have publication of notice requirements – although:

the form of notice would vary between the procedures, and
the expense for each type of publication of notice would vary from county to county.

Ancillary Probate in Minnesota – Appointment of Domiciliary Foreign Personal Representative

The Minnesota Ancillary Probate – Appointment of Domiciliary Foreign Personal Representative procedure may be accomplished either:

formally, after a hearing before a judge or probate referee, or
in some counties, informally, without the necessity of a hearing before a judge or probate referee.

(i) No Three Year Limitation

In contrast to the requirement that a Minnesota domiciliary personal representative be appointed for a Minnesota decedent within three years of the date of the decedent’s death, there is no similar requirement with respect to the appointment of a domiciliary foreign personal representative as a Minnesota local personal representative.

(ii) Probate Court Hearing – Formal Appointment

The Minnesota Ancillary Probate – Appointment of Domiciliary Foreign Personal Representative procedure may require a hearing before a judge or probate referee in the Minnesota county in which the real property is located.

The necessity of a Formal Appointment hearing may depend upon:

the county in which the real property is located,
the terms of the decedent’s Will,
the contents of the Order appointing the domiciliary foreign personal representative in the state of the decedent’s residence, and
the degree to which confirmation of marketable real estate title is desired in Minnesota.

Any Formal Appointment procedure involving a hearing in a Minnesota Probate Court may be more costly, and possibly more inconvenient for the person to be appointed, than either:

an Informal Appointment procedure, or
the procedure which recognizes the Authority of a Minnesota Local Personal Representative,

neither of which requires a hearing.

However, in some Minnesota counties, the petitioner need not make an appearance at the Formal Appointment hearing if the petition is uncontested.

Therefore, given its documentation requirements, the Minnesota Ancillary Probate – Authority to Exercise the Powers of a Minnesota Local Personal Representative procedure may not be any easier than the Minnesota Ancillary Probate – Appointment of Domiciliary Foreign Personal Representative procedure – even if a hearing is required.

(iii) No Probate Court Hearing – Informal Appointment

The Minnesota Ancillary Probate – Appointment of Domiciliary Foreign Personal Representative procedure may be accomplished in some Minnesota counties without the necessity of a hearing before a judge or probate referee, pursuant to an Informal Appointment procedure which varies from county to county.

Some Minnesota counties will allow the Informal Appointment procedure to be accomplished pursuant to the filing of documents by United States mail.

However, other Minnesota counties require the attorney, or the proposed Personal Representative, to appear at the probate court office before a non-judicial officer (the “Probate Registrar”).

Still other Minnesota counties will not allow use of the Informal Minnesota Ancillary Probate – Appointment of Domiciliary Foreign Personal Representative procedure if the decedent owned real property in that county at death which is subject to probate.

For those Minnesota counties that will allow use of the Informal Minnesota Ancillary Probate – Appointment of Domiciliary Foreign Personal Representative procedure when the decedent owned probate real property in that county at death:

if the proposed local personal representative is not also the domiciliary foreign personal representative,
the Probate Registrar may be required to delay the appointment of the local personal representative by 30 days,
unless the decedent’s Will specifically identifies that the probate administration of the estate will be subject to Minnesota law.

If the proposed local personal representative does not reside in Minnesota,

the informal Minnesota Ancillary Probate – Appointment of Domiciliary Foreign Personal Representative procedure – if available in that county,
may be preferable to the Minnesota Ancillary Probate – Appointment of Domiciliary Foreign Personal Representative formal procedure – which requires a hearing before a judge or probate referee.

However, in some Minnesota counties, the Minnesota Ancillary Probate – Appointment of Domiciliary Foreign Personal Representative formal procedure for the appointment of a Minnesota local personal representative – which requires a hearing before a judge or probate referee:

is actually easier than the Informal procedure requiring an appearance before the Probate Registrar, and
may be the only procedure available.

(iv) Removal of the Local Personal Representative

If the Minnesota local personal representative is someone other than the domiciliary foreign personal representative, the Minnesota local personal representative may be removed by the domiciliary foreign personal representative, and replaced by either:

the domiciliary foreign personal representative, or
a nominee of the domiciliary foreign personal representative.

Ancillary Probate in Minnesota – Authority of a Minnesota Local Personal Representative Procedure

If no local personal representative of the decedent’s estate has been appointed, and no petition or application for such appointment has been filed, a domiciliary foreign personal representative may seek to exercise the Authority of a Minnesota Local Personal Representative in order to acquire the power to sell or distribute Minnesota Real Property.

However, if a Minnesota resident creditor files a written objection with the probate court with respect to the commencement by the domiciliary foreign personal representative of the Minnesota Ancillary Probate – Authority to Exercise the Powers of a Minnesota Local Personal Representative procedure, the domiciliary foreign personal representative will not be recognized by a Minnesota probate court as having the power to sell or distribute Minnesota Real Property.

(i) Minnesota Title Issues – Ancillary Probate in Minnesota.

Prior to 2003, the Minnesota Ancillary Probate – Authority to Exercise the Powers of a Minnesota Local Personal Representative procedure could not be relied upon to provide marketable real estate title to a purchaser of Minnesota Real Property.

However, since 2003, the Minnesota State Bar Association’s Real Property Section has viewed the Minnesota Ancillary Probate – Authority to Exercise the Powers of a Minnesota Local Personal Representative procedure more favorably.

Nevertheless, given:

the relatively infrequent use of the Minnesota Ancillary Probate – Authority to Exercise the Powers of a Minnesota Local Personal Representative procedure – particularly in some Minnesota counties, and
the complexity required to achieve compliance with its requirements,

it may be easier, or perhaps advisable:

to have a Minnesota local personal representative appointed by a Minnesota probate court in a Minnesota Ancillary Probate Administration, than
to pursue the Minnesota Ancillary Probate – Authority to Exercise the Powers of a Minnesota Local Personal Representative

Therefore, while the Minnesota Ancillary Probate – Authority to Exercise the Powers of a Minnesota Local Personal Representative procedure may be an option which can provide marketable real estate title, its use would require the satisfaction of a number of documentation and recording requirements which may lessen its desirability.

This means that even though no court or other appearance would be required by the domiciliary foreign personal representative when pursuing the Minnesota Ancillary Probate – Authority to Exercise the Powers of a Minnesota Local Personal Representative procedure, a considerable amount of time and money may have to be spent obtaining and recording the required documents.

Even then, depending on the form of title evidence offered by a particular parcel of Minnesota real property:

the status of title to such property may depend upon the subjective opinion of some future attorney or Title Company employee examining title,
since such attorney or title examiner may not be comfortable with the requirements for establishing marketable title under the Minnesota Ancillary Probate – Authority to Exercise the Powers of a Minnesota Local Personal Representative

(ii) Abstract Real Property – Ancillary Probate in Minnesota.

If a parcel of Minnesota real property offers the Abstract Property form of title evidence, there will be no government official initially involved in determining the marketability of title achieved pursuant to the Minnesota Ancillary Probate – Authority to Exercise the Powers of a Minnesota Local Personal Representative procedure.

In other words, if the real property offers the Abstract Property form of title evidence, no one can be certain that upon any attempted conveyance of the real property, a future title examiner will be satisfied with the marketable title evidence provided by the Minnesota Ancillary Probate – Authority to Exercise the Powers of a Minnesota Local Personal Representative procedure.

(iii) Registered Real Property – Ancillary Probate in Minnesota.

In contrast, if the parcel of Minnesota real property had been Registered as Torrens Property, an official decision will be made regarding the marketability of title under the Minnesota Ancillary Probate – Authority to Exercise the Powers of a Minnesota Local Personal Representative procedure at the time of any attempted recording of a Personal Representative’s Deed executed by a domiciliary foreign personal representative.

Such official decision regarding the marketability of title with respect to Minnesota Torrens Property would be made – depending on the county involved – by either:

the County Registrar of Titles – by accepting the Personal Representative’s Deed for filing, and issuing a new Certificate of Title in the name of the purchaser,

or by

the County Examiner of Titles – pursuant to the issuance of an Examiner’s Directive directing the Registrar of Titles to accept the Personal Representative’s Deed for filing.

Due to the volume of Torrens Property transactions occurring in Hennepin and Ramsey counties in Minnesota:

the Hennepin County Torrens property officials in Minneapolis, and
the Ramsey County Torrens property officials in St. Paul,

may be more comfortable dealing with title evidence issues involving the Minnesota Ancillary Probate – Authority to Exercise the Powers of a Minnesota Local Personal Representative procedure, than would other attorneys or title examiners not as accustomed to evaluating the effectiveness of the Minnesota Ancillary Probate – Authority to Exercise the Powers of a Minnesota Local Personal Representative procedure.

Conclusion – Minnesota Ancillary Probate Administration

A Minnesota Ancillary Probate Administration may be required in the event that a non-Minnesota resident dies with an ownership interest in Minnesota real property which was:

not titled in joint tenancy, and
not subject to a Minnesota Transfer on Death Deed.

If you have need of an Ancillary Probate in Minnesota procedure, contact attorney Gary C. Dahle, at 763-780-8390, or [email protected].

Attorneys licensed in states other than Minnesota are invited to refer the Minnesota portion of the probate estate they are associated with to attorney Gary C. Dahle.

For Minnesota Cemetery law issues see http://dahlelawcemeteries.com/

For information on Minnesota Church Corporation law, see also Minnesota Church Law.

For information on Minnesota Transfer on Death Deeds, see also http://www.dahlelawminnesota.com/minnesota-transfer-death-deed/

For information on Minnesota Real Estate Law, see also http://www.dahlelawminnesota.com/minnesota-title-evidence-ownership/

For information on Minnesota Guardianships, see also http://dahlelawguardianships.com/

Gary C. Dahle is also licensed in North Dakota.

For information on North Dakota Probate law, see https://www.dahlelawnorthdakota.com/

For information on North Dakota Transfer on Death Deeds, see also http://northdakotatransferondeathdeeds.com/

Gary C. Dahle – Attorney at Law

2704 Mounds View Blvd., Mounds View, MN 55112

Phone: 763-780-8390 Fax: 763-780-1735

[email protected]

Legal Disclaimer

Information provided herein is only for general informational and educational purposes. Ancillary Probate in Minnesota law involves many complex legal issues. If you have a specific legal problem about which you are seeking advice, consult with a Minnesota attorney of your choice. Gary C. Dahle, Attorney at Law, is licensed to practice law only in the State of Minnesota, in the United States of America. Therefore, only those persons interested in matters governed by the laws of the State of Minnesota should consult with, or provide information to, Gary C. Dahle, Attorney at Law, or take note of information provided herein.

Accessing the web site of Gary C. Dahle, Attorney at Law – https://dahlelawprobate.com – may be held to be a request for information. However, the mere act of either providing information to Gary C. Dahle, Attorney at Law, or taking note of information provided on https://dahlelawprobate.com, does not constitute legal advice, or establish an attorney/client relationship.

Nothing herein will be deemed to be the practice of law or the provision of legal advice. Clients are accepted by Gary C. Dahle, Attorney at Law, only after preliminary personal communications with him, and subject to mutual agreement on terms of representation. If you are not a current client of Gary C. Dahle, Attorney at Law, please do not use the e-mail links or forms to communicate confidential information which you wish to be protected by the attorney-client privilege.

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Links to Minnesota Probate Records

Minnesota Department of Health – Death Records Index – 1997 to Present: https://www.health.state.mn.us/people/vitalrecords/deathsearch/dthSearch.html

Minnesota Historical Society – Death Records; 1904 – 2001: http://www.mnhs.org/people/deathrecords

Minnesota Department of Health – Birth Certificates – http://www.health.state.mn.us/divs/chs/osr/birth.html

Minnesota Historical Society – Birth Records: http://www.mnhs.org/people/birthrecords

Minnesota Marriage Records – https://moms.mn.gov/